KRUSAC v COVENANT MEDICAL CENTER, INC

Docket No. 149270. Argued January 13, 2015 (Calendar No. 4). Decided April 21,

2015.

John Krusac, as personal representative of the estate of Dorothy Krusac, brought a 

medical malpractice action in the Saginaw Circuit Court against Covenant Medical Center, Inc., 

alleging that Dorothy Krusac died as a result of injuries she sustained when she rolled off an 

operating table following a cardiac catheterization procedure. During discovery, it became 

known that one of the attending medical personnel had filled out an incident report shortly after 

the event and submitted it to her supervisor. Plaintiff filed a motion in limine, asking the court to 

inspect the incident report in camera and provide plaintiff with the facts contained in it. The trial 

court, Fred L. Borchard, J., denied plaintiff’s motion on the ground that the peer-review privilege 

set forth in MCL 333.20175(8) and MCL 333.21515 protected the report from discovery. On 

plaintiff’s motion for reconsideration, however, the court reviewed the report in camera and 

subsequently ordered defendant to provide plaintiff with a portion of the incident report that 

contained only objective facts in light of Harrison v Munson Healthcare, Inc, 304 Mich App 1 

(2014), which held that the peer-review privilege does not apply to objective facts contained in 

an incident report. Defendant sought leave to appeal the order in the Court of Appeals and 

moved to stay the proceedings, both of which motions the Court of Appeals denied. Defendant 

then sought leave to appeal in the Supreme Court and again moved to stay the proceedings. The 

Supreme Court granted both motions. 496 Mich 855 (2014).

In an opinion per curiam signed by Chief Justice YOUNG and Justices MARKMAN, KELLY, 

ZAHRA, MCCORMACK, and VIVIANO, the Supreme Court held:

MCL 333.20175(8) and MCL 333.21515 do not contain an exception to the peer-review 

privilege for objective facts. To the extent that Harrison held otherwise, it was wrongly decided

and was overruled. MCL 333.20175(8) and MCL 333.21515 make privileged all records, data, 

and knowledge collected for or by a peer-review committee in furtherance of its statutorily 

mandated purpose of reducing morbidity and mortality and improving patient care. This 

includes objective facts gathered contemporaneously with an event contained in an otherwise

Michigan Supreme Court

Lansing, Michigan

Syllabus Chief Justice:

Robert P. Young, Jr.

Justices:

Stephen J. Markman

Mary Beth Kelly

Brian K. Zahra

Bridget M. McCormack

David F. Viviano

Richard H. Bernstein

This syllabus constitutes no part of the opinion of the Court but has been 

prepared by the Reporter of Decisions for the convenience of the reader.

Reporter of Decisions:

Corbin R. Davis
privileged incident report. The trial court’s order for defendant to produce the objective facts, 

which was based on Harrison’s holding, was vacated, and the case was remanded for further 

proceedings.

Trial court order vacated; case remanded for further proceedings.

Justice BERNSTEIN took no part in the decision of this case.

©2015 State of Michigan
FILED April 21, 2015

S T A T E O F M I C H I G A N

SUPREME COURT

JOHN KRUSAC, Personal Representative of 

the ESTATE OF DOROTHY KRUSAC,

Plaintiff-Appellee,

v No. 149270

COVENANT MEDICAL CENTER, INC., 

d/b/a COVENANT MEDICAL CENTER- HARRISON, d/b/a COVENANT 

HEALTHCARE,

Defendant-Appellant.

BEFORE THE ENTIRE BENCH (except BERNSTEIN, J.)

PER CURIAM.

In this interlocutory appeal, we are once again asked to consider the scope of the 

peer review privilege found in MCL 333.20175(8) and MCL 333.21515 of the Public 

Health Code, MCL 333.1101 et seq. Specifically, we must decide whether the trial court 

erred by ordering production of the objective facts contained in an incident report 

authored by an employee of defendant Covenant Healthcare. The trial court’s decision 

was based on Harrison v Munson Healthcare, Inc, 304 Mich App 1; 851 NW2d 549

Michigan Supreme Court

Lansing, Michigan

OPINION Chief Justice:

Robert P. Young, Jr.

Justices:

Stephen J. Markman

Mary Beth Kelly

Brian K. Zahra

Bridget M. McCormack

David F. Viviano

Richard H. Bernstein
2

(2014), which held, in part, that the peer review privilege does not protect objective facts 

gathered contemporaneously with an event.

We hold that §§ 20175(8) and 21515 do not contain an exception to the peer 

review privilege for objective facts. As a result, this portion of Harrison was wrongly 

decided. In this case, the trial court erred by relying on Harrison to order production of 

the objective-facts portion of the incident report. Therefore, we vacate the trial court’s 

May 8, 2014 order and remand for further proceedings.

I. FACTS AND PROCEDURAL HISTORY 

In September 2008, Pramod K. Sanghi, M.D., performed a cardiac catheterization 

on 80-year-old decedent Dorothy Krusac, successfully placing stents in Krusac’s heart. 

Immediately following the procedure, however, Krusac began moving her legs around

and rolled off the operating table. Three medical personnel were present when this 

happened: Deborah Colvin, R.N., Heather Gengler, R.N., and Rogers Gomez, the lab 

technician. According to the deposition testimony of Colvin and Gomez, they were able 

to catch Krusac and cradle her gently to the floor, where she came to rest on her left side. 

At that time, Krusac denied hitting her head, but later complained of neck and back pain 

from the fall. The CT scan performed later that day showed no evidence of injury from 

the fall. Shortly after the surgery and fall, Krusac died.

Plaintiff John Krusac, as personal representative of the estate of Dorothy Krusac,

filed a medical malpractice complaint in the Saginaw Circuit Court against defendant, 

alleging that Krusac died as a result of injuries sustained from the fall. During discovery, 

it became known that Colvin had filled out an incident report shortly after the event and 
3

submitted it to her supervisor. Plaintiff filed a motion in limine on the eve of trial, asking 

the court to conduct an in camera inspection of the incident report and provide plaintiff 

with the facts contained in it. Relying on Harrison, plaintiff argued that the facts were

necessary to cross-examine the hospital staff and that it would be unethical for defendant 

to offer a defense inconsistent with the facts contained in the report. Defendant

responded that the peer review privilege under §§ 20175(8) and 21515 protected the 

report from discovery. After hearing oral arguments, the trial court denied plaintiff’s 

motion. Plaintiff thereafter sought reconsideration, which the court granted. The court

ordered defendant to produce a copy of the report for in camera review. After reviewing 

the report, on May 8, 2014, the trial court issued an order requiring defendant to provide 

plaintiff with the first page of the incident report, which contained only objective facts. 

The court based its decision on the Court of Appeals’ recent holding in Harrison that the 

peer review privilege does not apply to objective facts contained in an incident report.

Defendant sought leave to appeal in the Court of Appeals, and moved for 

immediate consideration and a stay of the proceedings. The Court of Appeals granted 

immediate consideration, but denied defendant’s application for leave to appeal for 

failure to persuade the Court of the need for immediate appellate review. The Court also 

denied the motion to stay the proceedings. Defendant then sought review by this Court. 

After granting defendant’s motion to stay the trial court proceedings, we granted leave to 

appeal and directed the parties to address

(1) whether Harrison v Munson Healthcare, Inc, 304 Mich App 1 (2014), 

erred in its analysis of the scope of the peer review privilege, 

MCL 333.21515; and (2) whether the Saginaw Circuit Court erred when it 

ordered the defendant to produce the first page of the improvement report 

based on its conclusion that “objective facts gathered contemporaneously 
4

with an event do not fall within the definition of peer review privilege.” 

[Krusac v Covenant Med Ctr, Inc, 496 Mich 855-856 (2014).]

II. STANDARD OF REVIEW

This case involves a question of statutory interpretation, which we review de novo.

Madugula v Taub, 496 Mich 685, 695; 853 NW2d 75 (2014). As with any statutory 

interpretation, our goal is to give effect to the Legislature’s intent, focusing first on the

statute’s plain language. Id. at 696. When the language of a statute is unambiguous, the 

Legislature must have intended the meaning clearly expressed, and the statute must be 

enforced as written. No further judicial construction is required or permitted. Id.

(citation and quotation marks omitted).

III. ANALYSIS

The peer review privilege is a creature of statute, not the common law. See 

Scheutzow & Gillis, Confidentiality and Privilege of Peer Review Information: More 

Imagined Than Real, 7 JL & Health 169, 181 (1992-1993) (“It is generally accepted that 

the privilege ascribed to peer review proceedings does not arise from any recognized 

common law principle, but is rather a legislative creation . . . .”). Therefore, in assessing

whether the peer review privilege applies to objective facts contained in an incident 

report, we must turn first to the language of the relevant statutes. See Dorris v Detroit 

Osteopathic Hosp Corp, 460 Mich 26, 33; 594 NW2d 455 (1999).

MCL 333.21513(d) imposes a duty on hospitals to create peer review committees

“for the purpose of reducing morbidity and mortality and improving the care provided in 

the hospital for patients.” Essential to the peer review process is the candid and 

conscientious assessment of hospital practices. Feyz v Mercy Mem Hosp, 475 Mich 663, 
5

680; 719 NW2d 1 (2006). To encourage such an assessment by hospital staff, the 

Legislature has protected from disclosure the records, data, and knowledge collected for 

or by peer review committees. Id. at 680-681. To this end, MCL 333.20175(8) reads:

The records, data, and knowledge collected for or by individuals or 

committees assigned a professional review function in a health facility or 

agency, or an institution of higher education in this state that has colleges of 

osteopathic and human medicine, are confidential, shall be used only for 

the purposes provided in this article, are not public records, and are not 

subject to court subpoena.

Similarly, MCL 333.21515 provides:

The records, data, and knowledge collected for or by individuals or 

committees assigned a review function described in this article are 

confidential and shall be used only for the purposes provided in this article, 

shall not be public records, and shall not be available for court subpoena.[1]

These statutes, and their predecessors,2 have been interpreted as “fully protect[ing] 

quality assurance/peer review records from discovery . . . .” Dorris, 460 Mich at 40. For 

example, in Attorney General v Bruce, 422 Mich 157, 164-165; 369 NW2d 826 (1985), 

we rejected the Attorney General’s argument that the privilege “was intended only to 

protect the confidentiality of peer review proceedings from discovery in circuit court 

proceedings (i.e., malpractice actions) . . . .” Instead, we held that the privilege protects 

from disclosure records sought by the Board of Medicine and the Department of 

 1 In this opinion, we use “peer review committee” to refer generally to “individuals or 

committees assigned a professional review function” under MCL 333.20175(8) and 

“individuals or committees assigned a review function” under MCL 333.21515.

2 The first peer review statutes were enacted by our Legislature nearly 50 years ago. See 

MCL 331.422(1) and (2) of the Hospital Licensing Act, 1968 PA 17, repealed by 1978 

PA 368.
6

Licensing and Regulation and ordered by investigative subpoena to be produced. Id. at 

173. Similarly, in In re Investigation of Lieberman, 250 Mich App 381, 389; 646 NW2d 

199 (2002), the Court of Appeals held that the privilege protects from disclosure records 

sought pursuant to a search warrant in a criminal investigation. Indeed, after reviewing 

the language of § 21515, the court concluded that “the Legislature has imposed a 

comprehensive ban on the disclosure of [peer review materials.]” Id. at 387 (emphasis 

added).

The Court of Appeals took a more constricted view of the peer review privilege in 

Harrison. In that case, the plaintiff sued a surgeon and the hospital (the defendants) after 

receiving a burn from a surgical instrument during surgery. At trial, the plaintiff learned 

that an operating room nurse had authored an incident report. The plaintiff sought to 

introduce the report. The defendants objected, claiming that the peer review privilege 

protected the report from introduction. The trial court reviewed the report at an in camera 

hearing and determined that the facts in the report contradicted the operating room 

nurse’s deposition testimony. The court found that the report itself was protected by the

peer review privilege but ruled that the facts contained in the report, as opposed to the 

conclusions drawn, should have been documented in the plaintiff’s medical record and 

made available to the plaintiff. The court declared a mistrial and imposed sanctions 

totaling roughly $54,000 on the defendants and their attorney based on their presentation 

of a defense inconsistent with the facts contained in the report.

In a published opinion, the Court of Appeals addressed whether the peer review 

privilege applied to the incident report at issue. Relying heavily on caselaw from foreign 

jurisdictions, the panel found a distinction between “factual information objectively 
7

reporting contemporaneous observations or findings and ‘records, data, and knowledge’ 

gathered to permit an effective review of professional practices.” Harrison, 304 Mich 

App at 30. It held that “[o]bjective facts gathered contemporaneously with an event do 

not fall within [the peer review privilege.]” Id. at 32. It reasoned that “[t]o hold 

otherwise would grant risk managers the power to unilaterally insulate from discovery 

firsthand observations that the risk manager would prefer remain concealed” and that 

“[t]he peer-review statutes do not sweep so broadly.” Id. at 34. The panel concluded that 

the facts recorded on the first page of the incident report were not privileged, but that the 

remainder of the incident report was protected because it reflected a deliberative review 

process.3

However, contrary to the Harrison panel’s conclusion, the peer review statutes do 

not contain an exception for objective facts contained in an otherwise privileged incident 

report. Both §§ 20175(8) and 21515 protect the “records, data, and knowledge” collected 

for or by a peer review committee. While the words “record,” “data,” and “knowledge”

are so common they hardly bear defining, a review of the dictionary definitions of each

demonstrates that the Harrison panel’s interpretation contradicts the plain language of the

peer review statutes. See Spectrum Health Hosp v Farm Bureau Mut Ins Co of Mich, 492 

Mich 503, 515; 821 NW2d 117 (2012) (recognizing that a court “may consult dictionary 

definitions to give words their common and ordinary meaning”) (citation omitted). 

“Record” is defined as “an account in writing or the like preserving the memory or 

 3 The panel also affirmed the trial court’s decision to sanction defendants but remanded 

for redetermination of the proper apportionment of the sanctions. Harrison, 304 Mich 

App at 43-45.
8

knowledge of facts or events.” Random House Webster’s College Dictionary (2001) 

(emphasis added). “Data” is defined as “individual facts, statistics, or items of 

information.” Id. (emphasis added). “Knowledge” is defined as “acquaintance with 

facts, truths, or principles” or “familiarity or conversance, as by study or experience.” Id. 

(emphasis added). Because the ordinary meaning of these statutory terms plainly 

encompasses objective facts, we hold that objective facts are subject to the peer review 

privilege. We therefore disagree with the Harrison panel’s conclusion that the 

Legislature intended to exclude from protection objective facts contained in an otherwise 

peer review privileged incident report.4

Plaintiff argues that an interpretation of §§ 20175(8) and 21515 that protects 

objective facts from disclosure would conflict with MCL 333.20175(1), which requires a

hospital to “keep and maintain a record for each patient, including a full and complete 

record of tests and examinations performed, observations made, treatments provided, 

 4 To create the objective-facts exception, the Harrison panel relied on several cases from 

outside our jurisdiction. However, resort to these cases was not permitted because the 

peer review statutes are unambiguous. See Madugula, 496 Mich at 696. In any event, 

the cases utilized by the Harrison panel do not support the creation of such an exception. 

The panel relied upon three cases cited by this Court in Monty v Warren Hosp Corp, 422 

Mich 138, 146-147; 366 NW2d 198 (1985): Davidson v Light, 79 FRD 137 (D Colo, 

1978), Bredice v Doctors Hosp, 50 FRD 249 (D DC, 1970), and Coburn v Seda, 101 

Wash 2d 270; 677 P 2d 173 (Wash, 1984). However, the Monty court relied on those 

cases as guidance for determining whether a hospital committee was assigned a peer 

review function, not whether the content of an incident report was protected by the peer 

review privilege. In addition, a reading of these cases indicates that they shed no light on 

the scope of our peer review statutes as they either do not discuss a statutory privilege at 

all (e.g., Bredice and Davidson), or pertain to a statutory privilege materially different 

from ours (e.g., Coburn).
9

and . . . the purpose of hospitalization.”5 However, § 20175(1) does not alter the scope of 

the peer review privilege. Whereas §§ 20175(8) and 21515 pertain to a hospital’s duty 

under MCL 333.21513(d) to create a peer review committee that collects and reviews 

information in an effort to reduce morbidity and mortality and improve patient care, 

§ 20175(1) imposes on a hospital an entirely distinct and unrelated duty—to make a full 

and complete medical record concerning a patient’s current care. Because these 

provisions pertain to entirely distinct duties, no conflict exists, and we cannot conclude

that the Legislature intended § 20175(1) to create an exception to the peer review 

privilege. See Bruce, 422 Mich at 167-169 (rejecting an argument that disclosures 

required by another subsection of § 20175 defeated the peer review privilege).

6

The Harrison panel, certain amici, and plaintiff have expressed concern that a 

holding that the peer review privilege applies to objective facts in an incident report

“would grant risk managers the power to unilaterally insulate from discovery firsthand 

observations that the risk manager would prefer remain concealed.” Harrison, 304 Mich 

 5 Essentially, plaintiff asks us to read the statutes in pari materia—i.e., construing them 

together as one law to resolve the alleged conflict. See Int’l Business Machines v Dep’t 

of Treasury, 496 Mich 642, 652; 852 NW2d 865 (2014) (opinion by VIVIANO, J.). 

6 Plaintiff argues, in essence, that since a hospital is required to publish certain factual 

information in the patient’s medical record, it cannot claim the same information is 

protected by the peer review privilege. However, this argument misapprehends the 

nature of a privilege under Michigan law. We have long ago “repudiated the theory that 

once . . . confidential information ha[s] been published, the privilege of objecting to its 

repetition ha[s] been waived . . . .” Polish Roman Catholic Union of America v Palen, 

302 Mich 557, 562; 5 NW2d 463 (1942) (citation omitted). Rather, even though the 

information may properly be proved from another source—i.e., the medical record or 

witness testimony—a hospital may still claim an exemption from disclosing materials 

that are subject to the peer review privilege.
10

App at 34. However, although the terms “records,” “data,” and “knowledge” are broad 

enough to include objective facts, the scope of the privilege is not without limit. Instead, 

the privilege only applies to records, data, and knowledge that are collected for or by the 

committee under §§ 20175(8) and 21515 “for the purpose of reducing morbidity and 

mortality and improving the care provided in the hospital for patients.” 

MCL 333.21513(d). See also Dorris, 460 Mich at 40.

7

 Moreover, while the peer review 

privilege may make it more difficult for a party to obtain evidence,

8 the burden on a 

litigant is mitigated by the fact that he or she may still obtain relevant facts through 

eyewitness testimony, including from the author of a privileged incident report, and from 

the patient’s medical record.

9

 Finally, if a litigant remains unsatisfied with the statutory 

 7 In providing guidance to courts on how to engage in this statutory inquiry, we have 

previously stated:

In determining whether any of the information requested is protected 

by the statutory privilege, the trial court should bear in mind that mere 

submission of information to a peer review committee does not satisfy the 

collection requirement so as to bring the information within the protection 

of the statute. Also, in deciding whether a particular committee was 

assigned a review function so that information it collected is protected, the 

court may wish to consider the hospital’s bylaws and internal regulations, 

and whether the committee’s function is one of current patient care or 

retrospective review. [Monty, 422 Mich at 146-147 (citations omitted).]

8 Indeed, by their very nature, privileges “are not designed or intended to facilitate the 

fact-finding process or to safeguard its integrity,” but “[t]heir effect instead is clearly 

inhibitive; rather than facilitate the illumination of truth, they shut out the light.” People 

v Warren, 462 Mich 415, 428; 615 NW2d 691 (2000), quoting 1 McCormick, Evidence 

(5th ed), § 72, pp 298-299.

9 To the extent plaintiff is arguing that defendant’s failure to comply with its statutory 

duty to publish certain information in the medical record should be deemed a waiver of 

the peer review privilege, we reject that claim as well. As noted earlier, hospitals have a 

statutory duty to maintain a full and complete medical record for each patient, which 
11

balance struck between disclosing information to patients and protecting peer review 

materials, any recalibration must be done by the Legislature. See Koontz v Ameritech 

Servs, Inc, 466 Mich 304, 312; 645 NW2d 34 (2012) (“Because the proper role of the 

judiciary is to interpret and not write the law, courts simply lack authority to venture 

beyond the unambiguous text of a statute.”).

For the reasons stated above, we reject the Harrison panel’s holding that objective 

facts gathered contemporaneously with an event do not fall within the peer review 

privilege. Accordingly, we overrule Harrison to the extent that it is inconsistent with our 

opinion today.10 Instead, we hold that §§ 20175(8) and 21515 make privileged all 

records, data, and knowledge collected for or by a peer review committee in furtherance 

of its statutorily mandated purpose of reducing morbidity and mortality and improving 

patient care. This includes objective facts gathered contemporaneously with an event 

contained in an otherwise privileged incident report.

 

includes, among other things, observations made and treatments provided to the patient. 

MCL 333.20175(1). However, deeming the peer review privilege waived is not among 

the sanctions provided by the Legislature for violations of § 20175(1). See, e.g., 

MCL 333.20175a, 333.20176(1); see also Fischer v WA Foote Mem Hosp, 261 Mich App 

727, 730-731; 683 NW2d 248 (2004) (discussing the ways within the Public Health Code 

to enforce its provisions).

10 The Harrison panel also found support for its decision in Centennial Healthcare Mgt 

Corp v Dep’t of Consumer & Indus Servs, 254 Mich App 275; 657 NW2d 746 (2002). 

However, Centennial is inapposite. Centennial does not address whether a private 

litigant has a right to review objective facts contained in an otherwise privileged incident 

report, but instead involves whether an administrative rule promulgated by the Michigan 

Department of Consumer and Industry Services infringed the peer review privilege. But, 

to the extent Centennial may be read as contrary to our opinion today, we limit its 

reasoning and holding to its specific facts. 
12

IV. APPLICATION

Because Harrison was wrongly decided and the trial court relied on Harrison to

order production of a portion of the incident report, we vacate the trial court’s May 8, 

2014 order in its entirety. The scope of this interlocutory appeal is limited to whether the 

trial court erred by relying on Harrison to order production of the objective facts found in 

the incident report. Having answered that question, we remand to the trial court for 

further proceedings.

V. CONCLUSION

We conclude that Harrison was wrongly decided, and we overrule the portions of 

it that are inconsistent with this opinion. Because the trial court in the instant case erred

by relying on Harrison to order production of the objective facts contained in the incident 

report authored by Colvin, we vacate the trial court’s May 8, 2014 order and remand to 

the trial court for further proceedings consistent with this opinion.

Robert P. Young, Jr.

Stephen J. Markman

Mary Beth Kelly

Brian K. Zahra

Bridget M. McCormack

David F. Viviano

BERNSTEIN, J., took no part in the decision of this case.